Monday, May 29, 2017

A prevalent argument used by the pharmaceutical industries in product liability cases is that the courts (and the judicial system) are not the proper venue to determine whether prescription drugs are dangerous. According to the argument, that type of decision should be left to the "experts" - in this case, to the FDA. Plaintiffs and consumer advocates counter that the FDA is not efficient in its work and that, if anything, the best plan is to have a combination of mechanisms to improve the safety of the products in the market.

A new study by the Yale School of Medicine now provides support for those who argue that the FDA procedures are not particularly adequate when it comes to determining the safety of prescription drugs. It found that nearly a third of those approved from 2001 through 2010 had major safety
issues. This information is particularly important now that the Trump administration has made it clear it prefers to eliminate regulation rather than strengthen it.

Tuesday, May 16, 2017

Above the Law is reporting that the Oklahoma legislature recently enacted a bill, now on its way to the Governor's signature, that may make the state the first American jurisdiction to impose a "loser-pays" rule in litigation.

The key provision, hidden in a bill supposedly about the rights of child abuse victims, lists a number of different types of civil claims, including torts, and holds that "[i]n any action brought . . . the court shall award court costs and reasonable attorney fees to the prevailing party."

One reason American jurisdictions have rejected this approach is that it discourages possible claimants from pursuing their claims for fear that they may end up with more debt. Instead, the use of contingency fees provides a way for claimants to get access to representation and if the claim does not work it is the lawyer, who is more likely in a better position to take the loss, who might be financially affected by it.

Yet, "tort reformers" have always advocated for a 'loser pays' approach arguing it would eliminate frivolous lawsuits, although, anyone who knows anything about tort reform knows that the goal is not to get rid of frivolous lawsuits but to discourage valid ones.

Maybe, now that someone realized what is really in the bill, the Governor can be convinced not to sign it. Otherwise, litigation will be very different in Oklahoma than in the rest of the US in the near future.

Monday, May 8, 2017

For almost two months now all my posts have been about medical malpractice reform bills. Today's update comes from Iowa where the state Senate has passed a tort reform bill (Senate File 465) which includes
provisions capping awards for non-economic damages at $250,000, requiring a "certificate of merit" to
screen out litigation and establishing standards for expert witnesses. There is more on the story here.

Apparently, the reforms were based on the discredited argument that they are needed to either keep doctors from leaving the jurisdiction or to attract doctors to the jurisdiction, an argument that is not supported by available empirical evidence. Also, the provision regarding "certificates of merit," as usual, was supported by the argument that it is a good way to screen out frivolous litigation. And, again, this argument is misleading because even though it may have that effect, the real goal of the provision is to make it more difficult for plaintiffs to be able to bring non-frivolous litigation. There are plenty of other mechanisms in place already that prevent frivolous litigation.

UPDATE (4-15-17): The TortsProf blog is reporting that the Iowa House has now passed the med mal reform bill, but fortunately, it was amended so it is not as bad as originally proposed. The amendment eliminated the "hard cap" and created an exception that would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.” Because of the this amendment, the House bill and the Senate bill will have to be reconciled.

UPDATE (4/28/17): The Senate passed a new bill adopting the House's version. The bill now goes to the governor who is expected to sign it. More on the story here.

UPDATE (5/8/17): Last Friday, Iowa Governor Terry Branstad signed into law a bill for med
mal cases requiring a certificate of merit and capping non-economic
damages at $250,000 except in cases involving permanent impairment,
disfigurement, or death. The Des Moines Registerhas the story. (Thanks to the TortsProf blog for this update.)

Wednesday, May 3, 2017

Those of you who follow the debate on medical malpractice reform already know this, but it is worth repeating. The goal of med mal reform efforts is to make it difficult for victims to be able to recover for their injuries, and have very little to do with the cost of healthcare. This has been the conclusion of multiple studies over the years, and today the New England Journal of Medicine is again adding its voice to the debate. It is warning that proposed tort reform efforts introduced by Republican lawmakers would cut deeply into consumers’ rights to pursue medical malpractice lawsuits, and are unlikely do much to lower the cost of healthcare.

I have posted lots of links to numerous studies that reach similar conclusions in the med mal section of this blog. You can go here and scroll down to find the stories. For some of those stories go here, here, here, here, here, and here.